What Do You Think About the Nomination of Neil Gorsuch? (Updated)

If you’re anything of a political junkie, you’re already aware that President Trump has tapped Colorado judge Neil Gorsuch as the next justice of the Supreme Court. To all appearances he’s well-qualified and, well, if you applied to Central Casting for a Supreme Court justice, they’d send Neil Gorsuch. He’s an Episcopalian which breaks the Catholic-Jewish lock on Supreme Court nominations.

Senate Democrats must give him a grueling going-over. They’d face revolt among their own supporters if they did anything else.

IMO if they’re prudent that will just be theater. He’s probably as good as they’re going to get and they won’t be able to delay confirmation for four years. Additionally, the odds are quite high that there will be additional justices to appoint over the next several years and, if they block a well-qualified appointee with judicial temperament for policy reasons, all rules will be off for the next appointment.

What do you think of the appointment?

Update

I think that Doug Mataconis’s commentary at Outside the Beltway is solid:

Personally, I suspect that Democrats will put up a fight but that Gorusch will be ultimately confirmed. The real fight will come if and when President Trump get a chance to replace another Justice, particularly if that Justice is Anthony Kennedy, Ruth Bader Ginsburg, or Stephen Breyer. Unlike replacing Scalia, that would be a pick that would drastically alter the direction of the Court for a generation or longer.

The comments clearly point to wanting Senate Democrats to fight the appointment to the last breath. I think that’s a strategic error.

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Parallels with the 1930s

With his most recent post at The American Interest, Walter Russell Mead is bound to raise some hackles, beginning with his first paragraph:

Not since Franklin D. Roosevelt has an American President done anything so cruel and bigoted. And only Barack Obama has exhibited this degree of callous indifference to the suffering of the Syrian people. President Trump signed an executive order on Friday suspending the admission of refugees from Syria indefinitely, suspending the U.S. refugee program for 120 days, and restricting immigration from parts of the Muslim world. Implementation failures—chaos and screw-ups at various airports as low-level officials wrestled with what the new order meant—compounded the callousness.

The entire cast of characters from the 1930s is represented. The actors playing the roles aren’t who you might think they are.

In my view the comparison is not apt. I won’t go as far as Henry Ford; I agree more with Sam Clemens.

Let the disagreements begin!

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Imagine

Imagine that the police power was wielded entirely on a volunteer basis. Police officers benefit greatly by lawfulness, don’t they? Just as other citizens do.

Now read this defense of the “liberal international order” by Kevin Sullivan at RealClearWorld.

We don’t rely on the public-spirited voluntarism of police officers. We pay them and they retain a legal monopoly on the use of force. Unless those were the rules they would be police officers.

I suspect that’s the way most Americans see things. There needs to be more in the “liberal international order” for more Americans for them to continue to embrace it wholeheartedly.

Now can you imagine the rest of the world accepting that sort of international order? Me, neither.

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Principle 0 and the Loss of Consensus

At Federalist Paul Bartow enunciates “four core American principles” for revitalizing the country:

  1. Good Government Requires Understanding Human Nature
  2. Distrusted in An Energetic Federal Government
  3. Citizens’ Virtue Is Crucial For Survival
  4. The Importance Of Federalism

There is a Principle 0 he fails to mention. Those four principles require that you believe that human nature is not infinitely malleable and is not unfathomable. Today many Americans don’t believe either of those things. There is also no consensus on the meaning of “virtue”. Some believe that virtue consists in supporting the right causes. Others, like me, believe that virtue is a habit and can only be cultivated through repeated action. In my view you don’t cultivate caring by voting for candidates who support higher taxes but by helping the unfortunate personally, just as you cultivate bravery by facing danger rather than by voting for brave candidates.

I agree that those principles are part of the basis of the American consensus but we have lost that consensus. I’m skeptical that consensus can be restored and, since the United States isn’t based on ties of blood or culture or history, it’s hard for me to see what a new consensus could be based on.

“Looking out for #1” is no basis for a national consensus.

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Baked While You Sleep

The Taystee Bread Company used to a have an advertising slogan: “Baked While You Sleep”. There have been some overnight developments in the matter of President Trump’s executive order banning travel to the U. S. by people from Iraq, Syria, Iran, Libya, Somalia, Sudan, or Yemen.

Events

Here are the events in the saga so far. On Friday President Trump issued an executive order putting a 90 day stay on travel by people from the seven countries listed above to the United States while the procedures for evaluating how the applications by those people are to be scrutinzed are re-examined. The action has met with scorn from many including both Republicans and Democrats. There have been demonstrations and denunciations both at home and abroad. Nearly all Congressional Democrats have come out in opposition to the EO; as of yesterday about 20 Congressional Republicans have come out against it with most of the rest remaining noncommittal.

Yesterday Acting Attorney General Sally Yates, an Obama appointee, issued a letter saying that she was directing the Department of Justice not to enforce the executive order. At Lawfare Jack Goldsmith, analyzing the letter, characterized the legal reasoning in the letter as “extraordinarily weak” and suggested that rather than being a legal statement within the AG Yates’s purview it was a political opinion and an act of insubordination.

President Trump has fired AG Yates.

There has been some flummery claiming that the firing would cripple the Justice Department, etc. but examination of the facts has revealed that claim to be preposterous.

Observations

Now some comments from me. Just to be clear, I oppose this executive order. I think it was far too broad and handled in a crude and hamhanded fashion.

Do I think it’s wrong to deal with some countries differently than others? Obviously not. The seven countries involved were deemed “countries of interest” under the Obama Administration and President Obama imposed a six month stay on travel to the United States from Iraq so it’s not completely wrong to think that President Trump’s action is a development of the policies of the Obama Administration although some are rejecting that view. I also note that with the exception of Iran the U. S. is conducting military operations in all of the “countries of interest” and it has been suggested from time to time that we have special forces operating in Iran as well. Under the circumstances I can’t help but wonder if that list isn’t an acknowledgement that is the case. Also, again with the exception of Iran, all of the countries in the list have Arab majorities. IMO there’s a much better case that the EO is anti-Arab than it is anti-Muslim.

Do I think it’s wrong to have different rules for people from some countries than others? Again, obviously not. We’ve been doing that for decades.

Do I think it’s wrong to have different rules for Muslim travelers from some countries than for non-Muslims from those same countries? I think it’s pragmatically problematic and I’ll give a tentative “Yes, I think it’s wrong” although I hasten to point out that we have had bans on travel to the U. S. by people holding certain views for decades and that between 1920 and 1965 Christians were de facto given preference in immigrating to the United States.

Do I think it’s counter-productive, even damaging, to U. S. interests? Yes. I also think that turning it into a cause célèbre is probably damaging to U. S. interests although I’m not prepared to make a quantitative or even a relative pronouncement on the subject. That’s among the reasons I think that, if the EO were to be issued at all, it should have been much narrower and handled a lot differently.

Basically, I think that the EO is a political act intended to reassure President Trump’s supporters that he was serious about what he said during the campaign. For some that will be reassuring; it will confirm the worst fears of others. It might also have been intended to demonstrate to them the limits of what he is able to do from a political standpoint as has been suggested by some but I’m not prepared to say I think that was part of Trump’s motivation.

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Is Trump’s EO a “Muslim Ban”?

Kevin Drum lays out his case that the executive order issued by President Trump last week was a ban on Muslims. With characteristic fairness he concludes:

I Am Not A Lawyerâ„¢, but I gather that courts don’t generally take account of arguments that rely on evidence of hidden intent unless there’s truly a smoking gun. The text of the executive order carries most of the weight, and the president has extremely broad authority in immigration law. Most likely, the bulk of Trump’s order will remain in effect.

In other words what drives his conclusion about the EO is his opinion of Trump rather than the text of the order itself. I won’t venture to speculate on its legality or illegality.

As of this writing most Democratic Congressmen have condemned the EO and most Republican Congressmen are still deciding which way to jump. I would hail Congress’s becoming involved and moving to limit the president’s authority in issues of immigration and for the courts to uphold that move.

If Republicans move to curtail the president’s power in this area, I would expect Democrats to join them and such bipartisan unity could withstand a presidential veto which might not even be forthcoming.

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Reaction

I wanted to pass along the message I received in an email from my employer yesterday evening. I won’t quote the actual text but I will tell you what it said.

It was from the president of the company and was addressed to all employees. It referred to President Trump’s executive order of last week and instructed all employees who held green cards to cancel travel plans.

I think that those who’ve pointed out that Trump is making an extreme opening offer and adjusting it based on reactions and counter-offers are probably right but the message mentioned above highlights the problem with that approach. It introduces a lot of uncertainty.

What will come of all this I can’t say but I think it’s say to predict that we’re in for a bumpy ride.

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Mitigating the Risk

Judith Curry’s post on climate change at Climate, Etc. echoes points I made although not with respect to climate change on distinguish between risks and issues. I disagree with this observation:

‘Risk’ is not overly alarmist, but it does imply that the harm is quantifiable and mitigable — which I have argued that it is not.

Perhaps it depends on what the meaning of “is” is. I think there is possible harm, neither the harm nor the timeframe are quantifiable at this point, but I do think the risk can be mitigated. I just think that the go-to strategy for mitigating it, a carbon tax, is unlikely to work as a means for lowering emissions. For it to work the level of emissions produced by those who are sensitive to the tax must be high enough to have the desired effect. Since I believe that carbon emissions increase exponentially with income, a tax that’s high enough to produce the necessary results would need to be so draconian as to be politically impossible.

Which is why I think that, if you genuinely want to mitigate the risk of carbon emissions, the solution you should prefer is a technological solution along the lines of the many strategies I’ve posted on here rather than carbon taxes or alternative fuels. You might accomplish other objectives by those strategies but not mitigating the risks posed by climate change.

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The High-Low Health Plan

At RealClearHealth Mark Mackie and Steven Kuzmich present an alternative to the Affordable Care Act which will:

(a) offer universal health care coverage for serious illnesses for everyone in the country; (b) initiate universal wellness screenings for lower-income households that receive such coverage; and (c) inject market-based pricing that will cut federal and private health care costs — all without resorting to mandates or a single payer system

I’m skeptical that “market-based pricing” can be introduced into the healthcare system without eliminating the American Medical Association’s monopoly on deciding the relative worth of procedures or altering the supply side of the purchase transaction.

To my eye their plan looks very similar to the Ryan plan that was floated some years ago. That might be okay if the “contributions”, i.e. benefits, were indexed to non-healthcare inflation. Otherwise it’s unclear to me how it presents any advantage over Medicaid.

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Expect More

I read an interesting observation the other day which I’m passing along. Expect President Trump to move in two directions at the same time. He’s going to moderate his last executive order, the one governing immigrants from seven Middle Eastern countries being called the “Muslim ban” while simultaneously fulfilling more campaign promises that are sure to provoke outrage.

It’s called the “Dense-Pack” theory. The media only have a certain amount of bandwidth and they’ve just about reached their peak volume already. So expect more.

What? I have no idea. I admitted that I have no ability to predict what Trump is likely to do or how people will react more than a year ago.

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